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Hi, My father passed away recently and has left a large…

Hi, My father passed away recently...

Hi,

My father passed away recently and has left a large estate that is to be equally divided between myself and my brother. Can my husband take half my share if I divorce him this year? The estate has not gone through Probate yet.

Thank you for your assistance in this matter.

Kind regards,
Cassie

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Answered in 9 minutes by:

10/9/2013

Solicitor: Leon, Solicitor replied 9 years ago

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,712

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

Verified

Good Afternoon,

My name is XXXXX XXXXX I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question.

Because the inheritance is received at the end of the marriage, your husband will not be given a share of the inheritance per se.

What the courts do is take into consideration the inheritance and determine the balance of the assets of the marriage on how they are split.

The course, from your description, it is a large inheritance, your future needs will be minimal and the court will not give you an adjustment in your favour for this.

If our future financial needs appear to be better than your husband's the court may give an adjustment in his favour.

The following link provides examples on how the courts deal with splits and inheritances

http://www.thenortonlawgroup.com.au/LapainePomoreForster3/Page/1765/Divorce+settlements+and+inheritance.aspx

it is not a simple question to answer and the court will look at each case individually.

Is there anything else I can assist you?

Customer reply replied 9 years ago

Good afternoon Leon,

With regard to my inheritance can it be put into a Trust for my son, so that I do not benefit from my inheritance?

Thanks,

Cassie

Solicitor: Leon, Solicitor replied 9 years ago

Good Afternoon Cassie,

Under the family Law act this is disposing of an asset, and the court will look at it negatively as it will appear this was solely done for the purpose of defeating your husband's possible claim.

If you choose to give up your inheritance, this is a sale of right and you need to get a court order amending the will and you giving up your right to the inheritance and stamp duty will have to be paid on the value of the inheritance you are giving up.

It is not a viable option and it will not result in a better outcome for you in the property split.

Is there anything else I can assist you with?

Customer reply replied 9 years ago

Good afternoon Leon,

So if I divorce my husband now, our home, my business and my superannuation will all be split 50%? Because my husband does not have a job (he was made redundant), has wasted his superannuation and has barely any left. So will the judge favour him because of this and take half of my inheritance as well?

Thank you for your assistance in this matter.

Kind regards,

Cassie

Solicitor: Leon, Solicitor replied 9 years ago

Good Afternoon Cassie,

In any property split the law applies the following 4 steps:

Step 1: Determine what the assets are and their value

This will include all assets and their value as at the day that you are dividing them. It does not matter whose name the assets are in, they will form part of the matrimonial pool. Superannuation entitlements are also included.

Step 2: Determine what contributions you and your spouse made towards the assets.

This includes a consideration of both financial and non-financial contributions. Consideration is given to what assets each of you brought into the marriage as well. The weight given to your initial contribution will be dependent upon the length of your relationship. The longer the relationship the less weight given to the initial contribution.

Step 3: What are each of your future needs.

Consideration is given to your respective ages, your comparitive income earning capacity as well as other factors.

If these things don't balance equally for each spouse, then an adjustment is made in the percentages.

Step 4: Make an order that is just and equitable between both spouses

From what you have just told me, you are in a far better financial position, even without the inheritance, then your husband.

Depending on his age and his ability to find work the court may give him an adjustment that will result in him receiving more than 50% of the assets.

The court looks at all assets and also looks at each parties actions. If he wasted his superannuation for example by gambling, then the court will not give him more because he now has nothing. The court will consider is wasting of assets in the splitting.

In a long marriage which is more than 10 years the starting point is 50-50. The court then considers the other aspects mentioned above on whether he will move from their position.

Does that make sense?

Customer reply replied 9 years ago

Good afternoon Leon,

Thank you for all the information you have provided me, detailed below is what has been occurring in marriage for the last 22 years.

In relation to our 22 year marriage, my husband has an AVO on him as he is an alcoholic, (when the police appeared in court my husband did not turn up), although the AVO is still place, he was arrested the night before the court hearing drunk and abusive. He was pulled up for DUI although got out of it because my mother had died and the police felt sorry for him. He has a criminal record for bashing people, although this was before we were married. He has tried to commit suicide and the police came to the house and could not leave him because he was too drunk and he wanted to kill himself, so a neighbour had to stay with him (I was in Sydney at time with my father).

I have lost four family members (brother in law, sister, mum and dad) in the last two years, with my dad dying at the end of August. My mother did not leave me anything in her Will last year as she did not want my husband to receive any because he is an alcoholic. I tried to divorce him 20 years ago, although he made a lot of promises to stop drinking so I did not go through with it.

Also my husband and I currently live in our home in Queensland with our son who is 18 years old, my son and my husband have never gotten on because my husband drinks and gets abusive, to the point that my husband punched me in the mouth although I did not file a complaint.

My parents lived in Sydney and that is were the family home is that will eventually be sold and the proceeds go to me and my brother.

If I get divorced now will the court take into consideration the police records of what my husband has done over the years?

He has been working until February this year and he was let go due to his drinking and not adhering to company policies with his expense account.

Thank you for your assistance in this matter.

Kind regards,

Cassie

Solicitor: Leon, Solicitor replied 9 years ago

Good Evening Cassie,

The news is not good.

Family law property and divorce matters are no fault. So the abuse etc will not have a of weight unless it can be shown that your need is based on his abusive nature.

His alcoholism if it has lead to him waisting assets then it will be in your favour.

But generally there is no penalty in a property split because of his abuse.

The 4 steps are what are followed.

I am sorry I cannot give you anything more positive.

Is there anything else I can assist you with?

Customer reply replied 9 years ago

Good Evening Leon,

Would you be able to suggest a good lawyer for me to get a divorce?

I currently live on the Sunshine Coast.

Thank you for your assistance in this matter.

Kind regards,

Cassie

Solicitor: Leon, Solicitor replied 9 years ago

Good Evening

The divorce is not an issue. It is the property split you have to concern yourself with and you do not get divorced until the property is finalised.

You can contact Watts McCray Solicitors they are Family Law Solicitors.

http://www.wattsmccray.com.au

You can also contact the law society and get a referral to others and get ideas on pricing etc.

http://www.lawsociety.com.au

I hope all this is of assistance.

Customer reply replied 9 years ago

Good Evening Leon,

What do you mean you do not get divorced until the property is finalised?

Thank you for your assistance in this matter.

Kind regards,

Cassie

Solicitor: Leon, Solicitor replied 9 years ago

Good Evening

Once you get a divorce there is 12 months to finalise the property. If you cannot resolve the property matter in that period and you do not file an application then the costs increase because you are out of time.

For you this may be a benefit but usually a divorce is the last thing people do. They focus on the property.

I hope this makes sense.

You are very welcome and thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Leon, Solicitor

Category: Australia Law

Satisfied Customers: 52,712

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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